Corona’s “Midnight” Appointment: Legal or not?

The Supreme Court Ruled on The Matter

Several petitions by groups and personalities were raised to the Supreme Court for resolution.  The petitions intended for the SC to  resolve the question whether the ban on midnight appointments extended to the judicial branch of the government.  The SC consolidated these petitions prior to the retirement of Chief Justice Reynato Puno.  In an en banc decision headed by CJ Puno on March 17, 2010, the Supreme Court said that the ban on midnight appointments did not extend to the judiciary.

Note that when we say en banc, it does not mean it was a unanimous decision by the SC.  The Supreme Court can normally decide cases using three-panel judges or five-panel judges.  The term en banc only means the all the members of the SC convened.  But the individual approvals, dissent and participation of the Justices are noted per judge.  So in essence, the Supreme Court is not a collective body that rules on cases, but they are a collegial body.  All of them are equals in matters of legal decision.  The Chief Justice’s vote is accounted as only one vote out of the total 15 justices sitting in the SC.  Former Supreme Court Chief Justice Artemio Panganiban  explains that the Chief Justice is only primus inter pares (first among equals) in an enlightening piece published in the Philippine Daily Inquirer in 2009.

In the Supreme Court press statement, the positions of the justices in essentially upholding GMA’s  judicial appointments were as follows:

Concurring with Justice Bersamin, who also opined that the exemption covers the entire Judiciary are Justices Teresita J. Leonardo-De Castro, Martin S. Villarama, Jr., and Jose Perez. Justice Roberto A. Abad wrote a separate concurring opinion.

Justice Arturo D. Brion also concurred in that “appointments to the Supreme Court are not subject to the election ban under Section 15, Article VII,” but wrote a separate opinion that he “disagrees with the conclusion that the incumbent President’s authority to appoint extends to the whole Judiciary.” He was joined by Justices Diosdado M. Peralta, Mariano C. Del Castillo, and Jose C. Mendoza.

Justice Conchita Carpio-Morales dissented, while Justice Antonio Eduardo B. Nachura, who was joined in his separate opinion by Justice Presbitero J. Velasco, Jr., voted to dismiss all petitions for being premature. Justice Nachura did not any more discuss the issue on whether or not the incumbent President can appoint the successor of Chief Justice Puno.

Chief Justice Reynato S. Puno, Senior Justice Antonio T. Carpio, and Justice Renato C. Corona did not take part.

 [The full text of their concurrence, reservations, dismissal and dissent have been included in the links in the above quotes.]

In summary:  five justices fully concurred, four justices concurred but with reservations regarding inclusion of lower courts, 2 justices dismissed the petitions for being premature, 3 justices abstained including CJ Puno and Corona, and a lone full dissent by one justice (who by the way has been recently appointed as the new Ombudsman replacing Merceditas Guttierez.)

I am advocating the readers to devote time to study the decision of the court and understand why such ruling was made.

So, did Article VII, Section 15 apply to the Judiciary?

The answer here is no.

The Supreme Court effectively ruled that if the framers of the 1987 Constitution had intended Article VII, Section 15 to include the member of the Judiciary, they would have written it so but did not. Thereby ruling that the entire article is limited to the Executive branch only. Note also that in the decision, the Supreme Court quoted the separation of powers doctrine espoused by the framers of the 1987 Constitution as lifted from the Record of Proceedings and Debates of the Constitutional Commission.  The SC also said that the very creation of the JBC points to the intent of the framers to exclude the judiciary from Articles VII, section 14, 15 and 16.

Can a new President (Aquino) revoke the appointment of any member of the Judiciary citing Article VII Section 14?

The SC ruled that since it also follows that a separate mandate was espoused in Article VIII, 8.(5) and 9 is specific to the Judiciary, the power of the President to revoke appointments is limited only to Executive positions. Because if it were extended to the Judiciary, it creates a a precedent that acting Justice positions can be revocable at will by the President. It will therefore undermine the independence of the judiciary. Furthermore, the SC states that there is an absence of legal literature (perhaps even outside of the Philippines) that approves revoking the appointment of a member of the Judiciary. There is no legal precedent on the matter.

Should the next President (Aquino) be given the authority to appoint the next Chief Justice considering the term of outgoing President (Arroyo) is only 45 days from the retirement of the CJ Puno, given  the 90-day proscription in Article VIII, Section 4.1,?

According to the SC, they ruled the relevance of Article VIII, Section 4.(1) should not be decided based on the specific retirement of CJ Puno but applied for any vacancy arising within the Judiciary.  They even stated the argument for the question above is predicated on a false assumption that tenure is congruent with the window of time proscribed.  From this answer, one can note that the Justices do not rule based on personalities but on the constitutional impact of the petition.

Can a sitting President appoint any justice to become a member of the Supreme Court even without the JBC list if there is a vacancy, citing Article VIII, Section 8.(5)?

The SC says the spirit of Section 8.(5) is not so much about the list but whether a candidate outside of the current members of the Supreme Court has the provision to be appointed.  They stated that the very function of the JBC, in screening and vetting nominees guarantees that provision, in such a manner that candidates are made qualified.

They also doubted if the list is even necessary in the extreme case that a sitting President intends to choose from the members of the Supreme Court.

Considering the ruling above, can a President appoint a Chief Justice from the existing members of the Supreme Court?

The SC preferred not to rule on the question because primarily no petition was filed for their resolution.  However, they did recognize the merit of the issue for deeper analysis, should it arise.  Therefore, they did not specifically speculate on suggestion made by Senate President Enrile to bypass the JBC list and choose from existing members of the Supreme Court:

The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile’s statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list.

What is the relevance of  Section 12 of Judiciary Act of 1948?

The SC stated that the petition raised by the Philippine Bar Association (PBA) calls for a provision for an Acting Chief Justice – a temporary function until a duly-appointed one is sworn in.  The SC, then, posits that they cannot agree with the stand of the PBA.  To quote:

With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.

The SC also cited history that there has been no prolonged wait to appoint the CJ even in the retirements and resignations of former Chief Justices in their successions:

  1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day;
  2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day;
  3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991;
  4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998;
  5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and
  6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.

Will the appointment of a member of the Judiciary by a sitting President risk judicial independence of the courts?

The SC ruled that the same argument, if allowed, should also then apply to the next President if he is allowed to appoint.  To quote:

To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010.

Can we then afford to delay the appointment of a vacancy of the position of Chief Justice?

The Supreme Court ruled no.  They took the consideration that it was in an election period and would necessitate that the function and duties of the Chief Justice ensures leadership within the judiciary especially as he sits as chair of the Presidential Electoral Tribunal.  To quote:

“…the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President.”

So was it Constitutional?

With regard to legality, yes, the appointment of Chief Justice Renato Corona is constitutional.  Former President Gloria Arroyo did not break the law.  The very gesture of Corona inhibiting from the SC deliberations is in itself to be applauded.

 Now, a lot of people will cite the delicadeza card and would state the Corona should have had the ethical sense to decline the appointment.  But delicadeza, despite it social mores, is not within the purview of the Constitution.  It is a personal one.  And the call for someone to exercise delicadeza is an opinion, emanating from moral and emotional convictions.

Furthermore, Corona  not declining does not automatically indicate, nor conclude, that he has the potential to destroy public trust.  For even the constitution does not firmly state the parameters defining the betrayal of public trust.  Honestly,  the call for him to exercise delicadeza was a clamor only because he was guilty by association.  And only in this ongoing impeachment trial can we truly prove if he did abuse his authority by his own merits, not because he is a crony of the former President.  

Corona Concurred on Oct 10 Ruling on Midnight Appointments?

Again, several newspapers and even Franklin Drilon in a Senate press statement, said that CJ Corona concurred in the SC ruling on the ban on midnight appointments.  That thing needs to be qualified because it is misleading.  

Primarily CJ Corona’s concurrence was not on the constitutional ban of midnight appointments (which was done during Reynato Puno’s tenure, which he abstained from).   The October 10 ruling was about releasing a status quo ante order or a TRO on Executive Order No. 2 which was published by Aquino on July 30.  The TRO was required the Executive Branch to desist from terminating the positions held only by 7 appointees (not all of the 977 midnight appointees covered in the EO) due to the peculiar circumstances of the case.  It was not a ruling on the constitutionality, which was already done in March 2010.

Also note, that in a Manila Bulletin report in July 2010, the Palace in a press statement recognized Corona’s appointment as Chief Justice.  By extension, it means the question of his constitutionality to be appointed was also recognized by the President.

The long and short of it is this:  We have to know the Constitution.  We also have to know what it really means.  The first-rule-is-to-know advocacy is not a simple meme.  It paves the way for better insight and allows us as a nation not to be duped into our own narrow-minded approach to opinions about the country.  That’s why right now, i am suspending judgment on CJ Corona’s guilt on the Articles of Impeachment charges…because he still  is innocent until proven otherwise – a right every Filipino is entitled, a right enshrined in the very institution that protects the interpretation of the Constitution, a right that you and i have.

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